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6. Migrant workers

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Art. 12 (1): "Migrant workers and members of their families shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of their choice and freedom either individually or in community with others and in public or private to manifest their religion or belief in worship, observance, practice and teaching."

Art. 12 (2): "Migrant workers and members of their families shall not be subject to coercion that would impair their freedom to have or to adopt a religion or belief of their choice."

Art. 12 (4): "States Parties to the present Convention undertake to have respect for the liberty of parents, at least one of whom is a migrant worker, and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions."

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Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

A/CONF.189/PC.1/7, paras. 103-105 (contribution to the Preparatory Committee of the World Conference against Racism, Racial Discrimination, Xenophobia and related Intolerance):

"(b) Discrimination involving a majority and ethnic and religious groups not defined as a minority

103. As we have said, in the absence of an explicit definition of a minority in treaty law, most authors agree that there are core characteristics that allow us to distinguish a minority from the majority and from other groups of people living in a given territory. One of the criteria that may be lacking is the "objective" one of the absence of a link of nationality between the persons concerned and the State in whose territory they temporarily or permanently reside. This hypothesis concerns persons from immigrant communities. Other criteria may also be lacking, such as the absence of the subjective criterion or, in other words, the lack of a manifest desire on the part of group members to gain acceptance for their own characteristics as a minority, whose members would offer each other mutual support. [This hypothesis can be applied in the opposite sense, that is, if the group concerned would like to gain acceptance for its own characteristics as a minority when these are not recognized as such by the State. This is the case, for example, of certain Protestant religious associations in the Islamic Republic of Iran (see E/CN.4/1996/95/Add.2, para. 71). It is also the case of the Turks in Germany who wish to have the status of "national minority" like the other two national minorities, the Danes and the Swabians (see E/CN.4/1996/72, para. 23).] Of course, the absence of a particular criterion fortunately does not imply the absence of protection. The international instruments protect human rights independently of the existence of a link of nationality or whether the person concerned belongs to a minority in the terms of article 27 of the Covenant.

104. A large number of religions and ethnic groups are concerned here:

- Discrimination and xenophobia directed at North African or Arab nationals or nationals of Arab or North African origin in western Europe and the United States (E/CN.4/1997/71, para. 24) and Turkish nationals or those of Turkish origin in Germany (E/CN.4/1996/72, paras. 21 and 23, and para. 25 ff.), and Austria (E/CN.4/1997/71, para. 55 ff.);

- Discrimination against Palestinians in Israel (E/CN.4/1995/91, para. 69);

- Discrimination and intolerance in the Arab countries of the Gulf directed against foreign nationals whose religion is not sanctioned by the Koran, such as Hindus, Sikhs and Buddhists (ibid., paras. 38-39 and 54; E/CN.4/1998/6, paras. 64 and 68);

- Discrimination in Arab countries against Christians from Western countries (E/CN.4/1995/91, paras. 53-54; E/CN.4/1997/91, para. 19);

- Discrimination and intolerance affecting the Muslim community, particularly Muslims of Indian and Pakistani origin in the United Kingdom (E/CN.4/1998/79, para. 36);

- In the United States of America, Jews identified with a community on religious, cultural and ethnic grounds generally enjoy a privileged position, due in particular to favourable legislation (the clauses on non-establishment and the free exercise of religion; see E/CN.4/1999/58/Add.1, paras. 41-42). However, that should not hide the fact that they suffer from "hate crimes". In January 1998, for example, of the 8,734 crimes classed as "hate crimes", 1,400 were "religion-motivated", and of these more than 1,100 (nearly 80 per cent) were directed against Jews; these crimes mostly take the form of attacks on property and the desecration of cemeteries (ibid., para. 43). In most cases, but particularly those involving discrimination against Arabs, it is important to note, as the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance has done, that "manifestations of racism and xenophobia against Arabs are increasingly accompanied by a form of 'Islamophobia'. It is therefore difficult to separate acts of racial discrimination from acts of religious intolerance, as each may reinforce or encourage the other" (E/CN.4/1998/79, para. 36).

105. Similarly, the Special Rapporteur on religious intolerance notes that the situation of Muslims in the United States is "problematic"; Muslim representatives have said that they feel that there is both latently and openly a form of Islamophobia and racial and religious intolerance in American society (E/CN.4/1999/58/Add.1, para. 36). This is an extremely important observation and deserves some comment:

(a) A large number of ethnic and religious communities or groups or, a fortiori, minorities also seem to us to be concerned by this overlap between race and religion, independently of their status in the territory of the State (nationals or foreigners) or their numerical relationship with the rest of the population (minority/majority, minority/minorities) or of the definition of a minority;

(b) The fact that it is difficult to establish clear distinctions when dealing with double or even triple (racial/religious/sexist) discrimination is merely proof that those guilty of discrimination are not targeting exclusively the racial or religious identity of the victim. They target both identities because in their minds they completely reject the other, either in a confused way or otherwise, on the grounds of the other's beliefs, religious practices, rites and myths, as much as his racial, ethnic or even cultural origin. [The concept of "Arab" or "Arabness", for example, draws more on referents of a cultural nature, which are themselves the product of an ill-defined combination of both religious (that is, basically Muslim) and ethnic backgrounds.] In fact, it is not simply the superimposition of two single forms of discrimination. The conceptual difficulty pointed out by the Special Rapporteur hides a form of aggravated discrimination that cannot be described in terms of a single identity and thus cannot be governed by an ordinary regime."

A/HRC/4/21/Add.3, paras. 46-48 and 68-69 (country visit to the Maldives):

"Migrant workers, their families and other foreigners

46. There are approximately 53,000 expatriate workers in the Maldives, from a number of countries. Their right to adhere to religions or beliefs of their choice is respected in the Maldives. However, restrictions are placed on their right to manifest their religion or belief. In this regard, the Special Rapporteur emphasizes that it is all persons within a particular country, and not just the citizens of that country, who have the right to freedom of religion or belief, including the right to manifest that belief. Muslim foreigners do not generally suffer any restrictions on their right to manifest their religion or belief, although members of local congregations on some of the islands do not allow foreign manual labourers to attend the mosque.

47. In relation to non-Muslim foreigners, the Special Rapporteur notes that there are practical limitations on their right to manifest their religion publicly, and these limitations are supported by the vast majority of the population. As a matter of practice, they are not allowed to build places of worship or carry out prayers or religious rituals outside of theirs. They are allowed to congregate in their own s to pray and carry out religious rituals, but they are not allowed to invite Maldivians to these gatherings. In the Maldives there is not a single official place of worship for religions other than Islam. Any suggestion of allowing foreign workers, teachers and other non-Muslim residents to worship openly is met with firm resistance. All foreigners are prohibited from propagating their religion or carrying out missionary work.

48. Furthermore, the Special Rapporteur has been informed that expatriate school pupils who choose not to study Islam are unable to pass their end of year school exams. Islam forms an integral part of the school curriculum and it has been alleged that alternative subjects are not offered to expatriate school pupils. The paradox of this situation seems to be that a large percentage of schoolteachers in the Maldives are expatriate themselves. However, the Government maintains that expatriate students who choose not to follow Islamic Studies and Dhivehi language can opt out not to do so. [...]

68. The Special Rapporteur is extremely concerned by the current limitations placed on the right of migrant workers and other foreigners to manifest their religion or belief. She notes that these limitations are implemented as a matter of practice, and not as a matter of law. As such, they may fail to comply with the requirement in article 18, paragraph 3 of the ICCPR that any limitation on the right to manifest one's freedom of religion or belief must be prescribed by law. Furthermore, the Special Rapporteur questions to what extent these limitations are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others, as set out in article 18, paragraph 3, of the ICCPR and article 1, paragraph 3, of the 1981 Declaration.

69. The Special Rapporteur encourages the Government to give serious consideration to amending the current practice to enable non-Muslims to manifest their religion or belief in a manner consistent with human rights law. She recognizes that there is a notable amount of public opposition to any changes in this regard, and as such she would encourage the Government to make serious efforts to raise awareness about freedom of religion or belief. She also strongly recommends that the Government consider acceding to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which contains important provisions on the right to freedom of religion or belief, including the right to manifest one's belief, in public or in private, of migrant workers and their families."

A/64/159, paras. 32-34 and 70:

“32. In many countries all over the world, migrants are vulnerable to discrimination based on their religion or belief and face related prejudices on a societal level. The Durban Declaration explains that the situation of vulnerability in which migrants frequently find themselves is owing, inter alia, to their departure from their countries of origin and to the difficulties they encounter because of differences in language, customs and culture, as well as economic and social difficulties and obstacles to the return of migrants who are undocumented or in an irregular situation. [A/CONF.189/12, chap. I, Declaration, para. 50.] Various Special Rapporteurs have pointed to the discrimination against the children of migrants, for example with regard to their right to education as well as the absence of the promotion of freedom of religion or belief which hampers their capacity of integration and personal development. [E/CN.4/2002/73, para. 28.]

33. The Special Rapporteur would like to emphasize that all persons within a particular country, and not just the citizens of that country, have the right to freedom of religion or belief, including the manifestation of their religion or belief in worship, observance, practice and teaching. In her reports, the Special Rapporteur has pointed to practical limitations imposed on the freedom of migrants to manifest their religion or belief publicly, for example with regard to building places of worship, carrying out religious rituals openly or conducting missionary activities. She would like to recall that limitations on the right to manifest one’s freedom of religion or belief must be prescribed by law and must be necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

34. In her last report to the General Assembly, which focused on citizenship issues and religious discrimination in administrative procedures, [A/63/161, paras. 25-78.] the Special Rapporteur emphasized that immigration policies and citizenship tests must not discriminate on the basis of the applicant’s religious background. Together with other mandate holders, she also expressed concerns about the contents of questionnaires and interview guidelines used by domestic naturalization authorities. Finally, the Special Rapporteur highlighted that it would be contrary to the principle of non-discrimination to restrict citizenship to people with certain religious beliefs or to deny official documents based on the applicant’s religious affiliation. [...]

70. With regard to the situation of migrants, the Special Rapporteur is concerned at restrictions imposed on their freedom to manifest their religion or belief publicly and she recalls that according to international human rights law any such limitations must be prescribed by law and must be necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. In addition, States should implement specific measures involving the host community and migrants in order to encourage respect for cultural diversity, to promote the fair treatment of migrants and to develop programmes, where appropriate, that facilitate their accommodation into social, cultural, political and economic life.”

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